The court determined that the 10.1N is reasonably distinct from Apple's products and, therefore, does not constitute an infringement of Apple's Community design (the EU equivalent of a U.S. design patent) or the German law against unfair competition.

Still, the lower court could have found a violation of the German law against unfair competition, arguing that Samsung seeks to exploit the image of the iPad by offering a product that looks very similar. The appeals court had held the original Galaxy Tab 10.1 to violate competition law. But it appears that Samsung's designaround (modifications of product design in order to steer clear of further violation) has done the job.

If Samsung had lost today, I guess it would have tried again with yet another modified product.

Today's ruling is also good news for Motorola Mobility, whose Xoom tablet Apple is attacking with the same Community design (and presumably also on the basis of unfair competition claims) in Düsseldorf. If even the Galaxy Tab 10.1N steers clear of infringement, it's going to be quite difficult for Apple to win the Xoom case.

However, it's important to understand that today's decision is merely the denial of a preliminary injunction. In parallel to all those efforts to have different Samsung tablets banned as a result of fast-track proceedings, Apple continues to assert four different design-related rights against ten Samsung smartphones and five Samsung tablets, including the ones against which Apple sought preliminary injunctions. That case will take more time to be resolved (I guess we're talking about a year or more just for the regional court, plus a possible appeals proceeding before a higher regional court). Whatever the courts decided so far is not going to be binding on them when they adjudicate the case at the end of the full-blown main proceeding. Some may argue that the courts will want to take consistent positions, but with multiple design-related rights in play and a lot more time for expert reports and legal arguments, the outcome of the main proceeding is anything but a foregone conclusion. If it was a lost cause, Apple wouldn't be spending time and money on it.

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About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.